Scottish Court of Session Decisions

This was a petition presented by Dr Gavin Brown Clark, M.P. for the county of Caithness, craving the Court under sec. 34 of the Corrupt Practices Act 1883, “to make an order for allowing an authorised excuse for the petitioner's failure (1) to transmit the return of his election expenses within the time fixed by the Statute 46 and 47 Vict. c. 51, sec. 33; (2) to enclose as part of said return the receipt for £2, 2s. paid by the petitioner to the Lybster Temperance Hall Company; (3) to enclose as part of said return the receipt for £5, 15s. paid by the petitioner to James Nicol, Wick; (4) to insert the date of the election in the return which he made; (5) to state accurately the Christian name of the said James Nicol in the said return; (6) to insert the date of the election in the declaration as to the petitioner's expenses; and (7) to insert in the said declaration the amount paid by him for the purpose of the said election, or for his failure to do any of the above, wherein your Lordships shall consider that the petitioner has not complied with the statute, and further to make an order allowing all or any of the above failures or omissions, if found to have been committed, to be an exception or exceptions from the provisions of the said Act, which would otherwise make the same an illegal practice.”

The election in question took place in July 1895, and the petitioner acted as his own election agent. Answers were lodged by Alexander Dugald Mackinnon and Robert Sutherland.

The averments of the petitioner and of the respondents, and the sections of the Corrupt Practices Act 1883 (46 and 47 Vict. c. 51) applicable to the case, will be found in the reports of the previous stages of the case (ante, pp. 153 and 349).

In terms of a remit from the Court the Lord Ordinary ( Kyllachy) granted the petitioner and the respondent Sutherland a proof of their averments.

On 5th January 1897, before the proof was taken, the petitioners lodged a minute craving leave to amend the original petition (vide ante p. 154) by adding to the prayer the heads 6 and 7 of the above amended petition. The respondent objected, but the Lord Ordinary allowed the amendment. In the course of the proof the petitioner intimated that he did not propose to insist in his application for an excuse for the omission first set forth in the petition.

In the course of the proof certain questions put in cross-examination to the petitioner, and certain evidence proposed to be led by the respondent as to irregularities not mentioned in the petition, were objected to, and the Lord Ordinary sustained the objections.

By an interlocutor dated 14th January 1897 the Lord Ordinary found the petitioner entitled to an order for an authorised excuse in terms of sec. 34 of the statute.

In the course of his opinion (the first part of which will be found ante, p. 350) his Lordship observed—“The other point is this. The petitioner asks to have an excuse under the 34th section of the statute, that being the section which deals specially with errors or omission in connection with the return of election expenses. He also, however, asks for an order under the 23rd section of the statute, which section deals generally, inter alia, with all acts or omissions of a candidate at any election, which, by reason of being in contravention of the provisions of the Act,” ‘would be but for that section an illegal practice, payment, employment, or hiring.”

“I do not know the precise object for which the double order so sought is desired. It perhaps has to do with a certain difference in the language of the two sections—the 23rd section providing that the Court shall make an order allowing ‘an exception from the provisions of the Act,’ and the 34th section providing for an order for allowing an ‘authorised excuse.’ It seems to me, however, that what the statute contemplated in the particular case with which we have here to deal, was that the order should be an order under the 34th section, and that that order should be sufficient. Indeed, I doubt whether, upon a strict construction of the words of the 23rd

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section, an order under that section would be competent. For the exception there authorised is confined to the case where but for that section the omission would be an illegal practice. And that cannot, I apprehend, be predicated of errors or omissions with respect to the return of election expenses, seeing that by section 33 (sub-section 6) such errors or omissions constitute illegal practices only if and when they are without an ‘authorised excuse’—that is to say, an excuse under section 34. For these reasons I have dismissed that part of the prayer which asks for an exception under section 23.”

The respondent reclaimed, and the Court recalled the Lord Ordinary's interlocutor, repelled the objections to the evidence proposed to be led by the respondents, and remitted to the Lord Ordinary to proceed (see ante, p. 349).

In the course of the proof the petitioner gave evidence which amounted substantially to the averments made by him in the petition, which are quoted at pages 154–5, ante. He further admitted that in sending the declaration he had inadvertently omitted to fill up the blanks in which it was intended that the date of the election and the amount of expenses should be inserted, but explained that he considered the return of election expenses to be the most important matter, and had accordingly not paid so much attention to the declaration.

In cross-examination the petitioner deponed as follows:—“(Q) You don't sign or declare anything as to the account of expenses, hut only to the declaration?—(A) Evidently that is so. I read over the declaration myself before I signed it, and made deletions in it. In the first paragraph I have scored out the words ‘by my election agent.’ (Q) Was that done by yourself or by Mr Caldwell?—(A) I cannot say. I left in the words ‘if the candidate is also his own election agent.’ (Q) Immediately after the words ‘by my election agent,’ which you scored out, came the words ‘the sum of pounds and no more.’ Why didn't you fill that up, which occurs three words after those that you have deleted?—(A) I don't know; it was by pure inadvertence. It was not by inadvertence that I scored out the words ‘to my election agent.’ (Q) How do you account for your inadvertence in regard to the much more important matter three words further on, in omitting to put in the amount of pounds which represented your election expenses, and which you declare to be true?—(A) I don't know; I cannot explain it. (Q) How do you come to make a solemn and sincere declaration in regard to a blank sum like that?—(A) Because what I considered the principal and important portion of the paper was the statement of expenses, which showed the amount of every item.”

The petitioner admitted that when he transmitted the return he had forgotten that he had incurred a hiring account of £2, 9s. to Henderson's Royal Hotel, Thurso, during his candidature. He stated that he had left Wick the night of the election without empowering anyone to pay accounts for him, and after speaking in various constituencies had gone abroad.

Mrs Clark, wife of the petitioner, deponed that the above account had been sent to her by Surgeon-General M'Lean while her husband was abroad, and that she had paid it, and had not told her husband till February 1896, when she informed him that she had paid an account without mentioning the nature of it.

Surgeon-General M'Lean spoke to having received the account in November or December 1896, and to having sent it to Mrs Clark.

The petitioner, after the proof was closed, craved leave by minute to further amend the petition by adding the following statement—“At the time when the petitioner transmitted the said return he had completely forgotten that he had incurred a hiring account to Henderson's Royal Hotel, Thurso, during his candidature. The account had not been sent in to the petitioner, and he had not paid it. The account, which amounted to £2, 9s., was sent in about November 1895 to Surgeon-General M'Lean, a supporter of the petitioner at Thurso, with whom the petitioner was residing, at the time when the said account was incurred. Surgeon-General M'Lean sent it to Mrs Clark, who paid it with her own cheque, not knowing that it was an expense connected with the petitioner's election. The petitioner was at that time in India, and did not know till his return home, in or about March 1896, that his wife had paid the said account for him. He was not informed that the account which had been paid was one in connection with his election, and did not know that it was so until after the 5th January 1897, when the said account was referred to by the respondent Sutherland at the previous diet of proof in this petition. The petitioner omitted to mention the said account in his return through pure inadvertence, and he had no intention whatever of not returning any expense he had incurred.”

He also craved leave to insert in the prayer of the petition, after the words “said election” in the 7th head, the following words: “‘(8) To include as an unpaid claim in the return of his election expenses the sum of £2, 9s., incurred to Henderson's Royal Hotel, Thurso,’ and (Fourth) To omit the first head of the prayer of the petition.”

The Lord Ordinary ( Kyllachy) on 9th March 1897 pronounced the following interlocutor:—“Having considered the petition as amended, with the answers and the evidence led, including the additional evidence led of this date, Finds (1) that the petitioner does not insist in that part of the prayer of the petition which prays for an authorised excuse for the failure first mentioned in the prayer, except in so far as such failure may be held to be constituted by the omissions or errors second, third, fourth, fifth, sixth, and seventh mentioned in said prayer: Finds (2) that the said errors or omissions second, third,

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fourth, fifth, sixth, and seventh mentioned in said prayer arose by reason of inadvertence, and not by reason of any want of good faith on the part of the petitioner: Finds (3) that in these circumstances the petitioner is entitled to an order for an authorised excuse in terms of the 34th section of the statute: Therefore excuses the said errors or omissions in terms of said section, and also excuses the petitioner's failure to transmit the return and declaration respecting his election expenses as required by the statute, in so far as the said errors or omissions imported or may be held to import such failure so to transmit: To the above extent and effect grants the prayer of the petition: Quoad ultra dismisses the same: Finds no expenses due to or by either party, and decerns: Further, refuses the motion made by the petitioner at the close of the discussion for leave to amend the petition as proposed by minute.”

Opinion.—“I find nothing in this additional evidence to lead me to modify my former conclusion, that the errors and omissions for which an excuse was here sought were not inspired by any sinister motive, but were the result of inadvertence, and not of bad faith. Whether the petitioner requires to he excused for the alleged additional irregularities to which to-day's evidence applies, I of course say nothing. That will come up in another form. All I say at present is, that my present impression would not probably be different although these alleged additional irregularities should be held as proved. What I shall do is to repeat my former interlocutor, inserting merely the words ‘as also the additional evidence led of this date.’”

The respondent reclaimed, and argued—(1) The amendment came too late, being put forward only at the very end of the proof. Nor could it be admitted, under section 34 of the Act, unless notice were given in the county, since it introduced new matter. It should have formed the ground of a new application. He now admitted in it a serious offence, which he had practically denied at the first proof. (2) The petitioner by his gross neglect of the provisions of the statute had exhibited a “want of good faith” which might be inferred from such neglect as well as from acts of a fraudulent nature. The various acts for which the petitioner asked to be excused were some of a trifling nature, but one, viz., the failure to fill up the blanks in the declaration, was most important. Where there were various offences such as these, the Court, while it might excuse one, would not excuse the occurrence of so many— Hobbs, February 11, 1889, 5 Times L.R. 272.

Argued for petitioner and respondent—(1) The notice required to be given in the county was not specified in section 34 of the Act. There had been an advertisement stating that the petition was being presented, and it was in the discretion of the Court to hold that it was enough to cover this amendment. The respondent Sutherland had been the only person to come forward in answer to that advertisement, and he was in no way prejudiced by this amendment. (2) The proof showed that there had been no wilful disregard of the statute by the petitioner, and that his omissions were all due to inadvertence. He had £700 or £800 to come and go upon, and there was no reason why he should make his return smaller by wilfully omitting items. He might have included all his hiring expenses in his “personal expenses” which required no vouchers, and thus it would have been unnecessary to ask for an excuse for failing to send James Nicol's receipts.

At advising—